Railroad regulators should trust in science, not fiat
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One could forgive someone perusing the news for concluding that Washington is at such a profound standstill that policymakers cannot achieve anything of real substance, let alone of lasting economic legacy.

Not so, as the White House and Congress embark on an effort that will have far-reaching ramifications for American industries bound by layers of rules impeding growth. Today, President Trump and Transportation Secretary Elaine Chao are discussing the need to rethink permitting and regulations affecting transportation and infrastructure.

At the same time, the legislative branch is leading the charge to ensure that the current and future occupants of the White House perform due diligence before enacting another single regulation.


In an effort to promulgate the most cost-effective measures possible, the Regulatory Accountability Act would require federal agencies to conduct economic analyses and public hearings before issuing major rules. The bill is underpinned by principles leaders in both parties have supported — including the use of sound science to justify federal policies and infusing greater transparency into an often frustratingly opaque rulemaking process.


The private freight rail industry supports the effort to help U.S. businesses recover from years of unnecessarily intrusive oversight. And because railroads are the bedrock on which the economy sits — they allow other industries to succeed by providing safe and reliable transportation of goods and services — the view is that improving the regulatory plight of railroads will have a multiplier effect across industries.

Hence why railroads are pushing for even broader process improvements in which federal agencies are encouraged to employ what is known as performance- and outcome-based controls. These are far less directive, laying out a desired result while allowing the industry greater latitude to identify the best way to achieve that outcome.

At present, most safety protocols issued by the Federal Railroad Administration (FRA) prescribe the manner by which railroads are to operate, in the hope that those prescriptions will attain a particular safety goal. The rules often lack empirical justification, and in many cases, are so rigid that they deter innovation. In many ways, the endless stream of antiquated inspection protocols discourages the use of technologies the industry would like to deploy more widely.

As a result, regulations ultimately pass on baked-in costs and hurt freight rail companies, as well as manufacturers and consumers.

For example, railroads have developed specialized track-side wheel temperature detectors that are positioned alongside rail lines. They can measure the dynamic temperature of rail car wheels to identify potential brake problems before trouble occurs. They detect problems better than manual brake tests.

But outdated FRA decrees largely preclude the industry from relying solely on them to ensure safe trains. Rather, the FRA rules still require railroads to conduct less efficient and effective manual brake tests, creating a disincentive for railroads to invest in new safety technology. 

In another example, using technology involving ultrasonic devices, railroads now can continuously conduct internal rail inspections. These consist of operating a high-speed vehicle system non-stop along a designated route, analyzing the test data at an off-site centralized location and subsequently verifying likely defects. Continuous testing allows railroads to test more miles of track and prioritize repairs. But current rules generally hinder the industry from leveraging the technologies throughout the 140,000-mile rail network.

And in yet another case, the FRA is proposing a rule that would require most all freight trains to use two-person crews. This would be a watershed rule if enacted because crew size has traditionally been addressed under collective bargaining agreements. The FRA proposal was issued despite the agency’s own stated belief that there is no “reliable or conclusive statistical data” to support the rule.

In other words, the proposed directive does nothing to meet the supposed outcome the government desires — safer rail operations.          

The proposal makes even less sense when considering increased automation within the transportation sector. Railroads already are installing a multi-billion dollar automated safety system known as Positive Train Control, which has the potential to overcome human error in some manual operations.

But the FRA’s proposed crew size rule would deprive railroads of some of the efficiencies that come with such a system, stranding aspects of their investment, and effectively freezing the evolution of railroad operations that might affect crew size.

The way forward at the FRA — and indeed, across all government oversight agencies — is to embrace a more collaborative rule-making process allowing industries the breathing room to implement next-generation technologies.

That will be no easy feat. It will require government regulators to change their worldview and defer to science and empiricism, while fighting the default to emotion and fiat.

Hamberger is president and CEO of the Association of American Railroads. He has more than forty years of combined experience in private legal practice and the legislative and executive branches of the U.S. government.

The views of contributors are their own and are not the views of The Hill.